Telangana High Court

Sk. Lal Bee Died vs Sk. Jaffar on 30 June, 2022

Bench: A.Venkateshwara Reddy

     THE HON'BLE SRI JUSTICE A.VENKATESHWARA REDDY

               SECOND APPEAL No.945 OF 2012

JUDGMENT:

1. This second appeal is filed under Section 100 of the Civil

Procedure Code, 1908 (for short 'CPC') by the unsuccessful

plaintiffs assailing the concurrent findings of the trial Court in

O.S.No.55 of 2000 and the first appellate Court in A.S.No.101 of

2009.

2. The plaintiffs have filed the original suit in O.S.No.55 of

2000 on the file of the Senior Civil Judge, Khammam for

partition and separate possession of the suit schedule property

house bearing No.8-3-7 to an extent of 203.25 square yards with

Bangalore tiled house, consisting of four rooms situated at

Nizampet locality, Khammam Town with precise boundaries as

mentioned in the schedule of property. The trial Court on receipt

of the written statement from the defendants in all framed five

issues, recorded the evidence of PWs.1 to 5 and exhibited

Exs.A.1 to A.9 on behalf of the plaintiffs and examined DWs.1 &

2 and got marked Exs.B.1 to B.3 on behalf of the defendants.

                                 2                             AVR,J
                                                        SA_945_2012

3. After full length trial and on appreciation of the oral and

documentary evidence available, the trial Court has dismissed

the suit of plaintiffs holding that the second defendant has

purchased the suit schedule property under registered sale deed

dated 14.04.1975 from one Koppula Pullaiah and hence, it is the

exclusive property of the second defendant, who in turn sold a

portion of the same to the third defendant under registered sale

deed. Accordingly, held that the plaintiffs are not entitled for

partition and separate possession of their share in the suit

schedule property. Al the issues are answered against the

plaintiffs and in favour of the defendants.

4. Feeling aggrieved by the judgment and decree dated

04.03.2008 in OS No.55 of 2000, the plaintiffs have preferred an

appeal before the I Additional District Judge, Khammam, vide

AS No.101 of 2009. The learned first appellate Judge, after

hearing both sides formulated two points as required under

Order-41 Rule-31 CPC and answered both the points against the

appellants and in favour of the respondents/defendants.

5. Thus, the second appeal is filed against the concurrent

findings recorded by the trial Court and the first appellate Court 3 AVR,J SA_945_2012

as indicated above. As per the memorandum of second appeal,

the following substantial questions of law are framed:

i) Whether both the courts justified in rejecting the claim of the appellants for partition even though the relationship between the parties and original vendor is not in dispute?

ii) Whether the agreement of sale (Ex.A-7) dt: 5-12-

1973 will prevail over Ex-B1 alleged Registered Sale Deed dt: 14-4-1975 for determination of rights of the parties?

iii) Whether both the courts justified in rejecting Ex.A-7 even though requisite stamp duty was collected and not adduced any evidence to disprove the same by other side?

iv) Whether both the courts failed to appreciate the evidence on record to come to a right decision with regard to Ex.A-7, which is prior document to that of Ex.B-1, which is not binding on the appellants?

6. Heard learned counsel for the appellants/plaintiffs.

Perused the material placed on record. The submissions made

by him have due consideration of this Court.

7. I have carefully perused the judgment of the trial Court

and the first appellate Court. The trial Court has framed in all

six issues. Issues 1 and 5 are the core issues dealing with the 4 AVR,J SA_945_2012

nature of the property and entitlement of the first plaintiff for

1/8th share and plaintiffs 2 to 4 for 1/4th share and answered

both the issues in the negative against the plaintiffs holding that

the suit schedule property was purchased by the second

defendant through a registered sale deed under Ex.B.1 in the

year 1975.

8. The first appellate Court also formulated two points. Point

No.1 deals with the entitlement of plaintiffs for partition and

separate possession of the share of first plaintiff in the suit

schedule property. The learned first appellate Judge has

discussed at length about the evidentiary value of the agreement

of sale under Ex.A.1 and also the sale deed under Ex.B.1

wherein the second defendant has purchased the said property

and answered both the points against the appellants/plaintiffs

and in favour of respondents/ defendants.

9. I have given my thoughtful consideration to the substantial

questions of law that are framed by the appellants/plaintiffs, as

extracted above. The point No.(i) deals with the appreciation of

oral and documentary evidence with reference to the claim of the

appellants for partition in respect of suit schedule property and 5 AVR,J SA_945_2012

no legal points are involved. As stated above, both the Courts

below have carefully appreciated the oral and documentary

evidence, more particularly, the agreement of sale under Ex.A.7

and the registered sale deed under Ex.B.1 and arrived at a

proper conclusion that the second defendant has purchased the

suit schedule property under Ex.B.1 and it is not liable for

partition. Therefore, I do not find any merit in point No.(i).

10. Point Nos.(ii) to (iv) only deals with Ex.A.7 agreement of

sale dated 05.12.1973 and Ex.B.1 registered sale deed dated

14.04.1975. The trial Court and the first appellate Court have

carefully appreciated both the oral and documentary evidence

with reference to Ex.A.7 and Ex.B.1 and arrived at a reasonable

conclusion that the second defendant has purchased the suit

schedule property under Ex.B.1 registered sale deed and it is the

exclusive property of the second defendant. I do not find any

reason to meddle with the findings recorded by the trial Court.

So also, I do not find any question of law much less substantial

question of law involved in point Nos.(ii) to (iv), as extracted

above. All these grounds, as indicated above, only deal with the

factual side questioning the manner of appreciation of oral and 6 AVR,J SA_945_2012

documentary evidence by the trial Court and the appellate

Court.

11. Section 100 of C.P.C. deals with second appeals. The

existence of a substantial question of law is the sine qua non for

the exercise of the jurisdiction under the amended provisions of

Section 100 C.P.C. The jurisdiction of the High Court is now

confined only to entertain such appeals wherein substantial

question of law has specifically set out in the memorandum of

appeal and formulated by the Court (Thiagarajan v.

Venugopalaswamy B. Koil1 and Dharmarajan v. Valliammal2).

12. Recently, the Hon'ble Apex Court in Gurnam Singh (D) by

LRs and others v. Lehna Singh (D) by LRs3 while dealing with the

scope of Section 100 of CPC held at para-18 as under:

"18. Before parting with the present judgment, we remind the High Courts that the jurisdiction of the High Court, in an appeal under Section 100 of the CPC, is strictly confined to the case involving substantial question of law and while deciding the second appeal under Section 100 of the CPC, it is not permissible for the High Court to reappreciate the evidence on record and interfere with the findings recorded by the Courts below and/or the First Appellate Court and if the First

(2004) 5 SCC 762

(2008) 2 SCC 741

AIR 2019 SC 1441 7 AVR,J SA_945_2012

Appellate Court has exercised its discretion in a judicial manner, its decision cannot be recorded as suffering from an error either of law or of procedure requiring interference in Second Appeal. We have noticed and even as repeatedly observed by this Court and even in the case of Narayanan Rajendran v. Lekshmy Sarojini, (2009) 5 SCC 264, despite the catena of decisions of this Court and even the mandate under Section 100 of the CPC, the High Courts under Section 100 CPC are disturbing the concurrent findings of facts and/or even the findings recorded by the First Appellate Court, either without formulating the substantial question of law or on framing erroneous substantial question of law.

Therefore, we are constrained to observe as above and remind the High Courts the limitations under Section 100 of the CPC and again hope that High Courts would keep in mind the legal position before interfering in Second Appeal under Section 100 of the Code of Civil Procedure."

13. When the facts of the present case are tested on the

touchstone of the principles laid by the Hon'ble Apex Court in

the above decisions, the answer is in the negative. The

appellants/plaintiffs have failed to make out any substantial

question of law either from the memorandum of grounds of

second appeal or from the judgment of trial Court and the first

appellate Court. Therefore, relying on the principles laid in the

above decisions and in the facts and circumstances of the case,

I hold that no substantial question of law is made out for 8 AVR,J SA_945_2012

admission of the second appeal. The judgments of both the

Courts below do not disclose any irregularity and no question of

law much less substantial question of law is made out in the